2.2 This report represents our initial consideration
of the human rights implications of the Inquiries Bill, and notes
a number of points on which our Chairman has written to the Lord
Chancellor to request further information or clarification on
the human rights compatibility of the Bill.[106]
On receipt of the Lord Chancellor's response we will consider
and report on the Bill again.

2.4 The Bill sets out a framework for the appointment
of inquiry chairmen and members, the setting of terms of reference,
and the conduct of inquiry proceedings. It confers powers on the
Minister in relation to the conclusion or suspension of an inquiry,
and allows for restrictions on public access to inquiry proceedings,
and on disclosure of evidence to the inquiry. It makes provision
for the publication, and restrictions on the publication, of reports
of inquiries. Particular provision is also made for inquiries
within the responsibilities of the devolved administrations.

2.6 The most significant human rights issues raised
by the Bill relate to the use of the new statutory framework to
inquire into matters which engage the right to life, protected
by Article 2 ECHR. Where an inquiry under the Bill is the main
forum in which a death in state custody or at the hands of agents
of the state is investigated, it must comply with criteria of
independence, transparency and effectiveness, in order to satisfy
Article 2. Issues of compliance with Article 3 ECHR may also arise
where the subject matter of the inquiry relates to torture or
inhuman or degrading treatment or punishment. Powers of an inquiry
to compel the production of evidence and the attendance of witnesses
may engage rights under Article 8 ECHR.

2.8 It appears from a recent Government statement
that it is the intention that the Inquiries Bill should provide
the framework for at least one inquiry intended to satisfy the
Article 2 duty. The death of Patrick Finucane, a Northern Irish
solicitor murdered in circumstances involving allegations of collusion
by members of the security forces, resulted in a judgment of the
European Court of Human Rights that there had not, so far, been
a sufficiently effective and independent investigation into the
circumstances of the death to satisfy Article 2.[114]
In response to the judgement, the Northern Ireland Office indicated
that a new inquiry would be established, following the enactment
of the Inquiries Bill.[115]
We therefore address the provisions of this Bill on the basis
that they are likely to form the basis for inquiries into this
and other deaths which engage Article 2. In announcing the inquiry
into the death of Patrick Finucane the Northern Ireland Office
stated

In order
that the inquiry can take place speedily and effectively and in
a way that takes account of the public interest, including the
requirements of national security, it will be necessary to hold
the inquiry on the basis of new legislation that will be introduced
shortly.

2.9 The Explanatory Notes to the Bill confirm that
the Bill may be used as a basis for inquiries intended to discharge
the Article 2 investigative duty.[116]

2.10 The criteria for an Article 2-compliant inquiry
are clearly set out by the European Court of Human Rights in Jordan
v UK.[117]They
require that

 The
inquiry must be on the initiative of the state;

 It must be independent;

 It must be capable of leading to a determination
of whether any force used was justified, and to the identification
and punishment of those responsible for the death;

 It must be prompt and proceed with reasonable
expedition;

 It must be open to public scrutiny to
a degree sufficient to ensure accountability;

 The next-of-kin of the deceased must
be involved in the inquiry to the extent necessary to safeguard
their legitimate interests.

2.11 These criteria have been adopted and applied
by the House of Lords in the case of ex parte Amin.[118]
In that case the House of Lords made clear that these criteria
must be applied in all cases where the right to life was engaged,
including cases where a death was alleged to have resulted from
negligence on the part of agents of the state, as well as cases
where a death had resulted from the use of force. Wherever either
individual or systemic failings of public bodies may have resulted
in loss of life, therefore, the Article 2 duty to investigate
the death, in accordance with the criteria set out in Jordan,
will apply.

2.13 Ministerial influence on an inquiry is manifested
in a number of aspects of the Bill. Both the chairman and the
members of an inquiry panel are appointed by a Minister (clause
4), and the appointing Minister sets the terms of reference of
the inquiry (clause 5(1)(b)(i)). The Minister may dismiss inquiry
panel members on specified grounds including ill-health, breach
of duty, bias or misconduct (clause 11 (3)). Furthermore, the
Minister may suspend an inquiry (clause 12(1)) pending other investigations
or legal proceedings.

2.14 A number of aspects of the Bill appear to us,
on an initial assessment, to risk compromising the independence
of an inquiry, potentially breaching Article 2 ECHR where the
subject-matter of the inquiry concerns the right to life.

2.15 The first concern relates to the power of the
responsible Minister, under clause 13(1)(b), to bring an inquiry
to a conclusion before the publication of the report. Clause 13(1)
provides that an inquiry terminates either on the delivery of
the report of the inquiry, or on "any earlier date specified
in a notice given to the chairman by the Minister." There
is therefore a very wide discretionary power to terminate an inquiry
at any stage, with no provision made on the face of the Bill as
to the circumstances in which this power may be exercised, or
any need for reasons to be given for the decision to terminate
the inquiry. The Explanatory Notes state that: "there might
be situations before the submission of the report in which it
is no longer necessary or possible for the inquiry to continue.
New evidence may emerge that obviates the need to hold an inquiry
or demonstrates that the inquiry has the wrong focus, for example,
if it emerged during an inquiry that the event being investigated
was an act of sabotage rather than failings of a particular system".[121]
However, the power on the face of the Bill may be exercised in
a much wider range of circumstances than those mentioned in the
Explanatory Notes. We are concerned that both the exercise
of this power of suspension, and the effect which its potential
use may have, could compromise the independence of an inquiry
from ministerial control. We have written to the Lord Chancellor
expressing this concern, and asking whether consideration has
been given to specifying on the face of the Bill the circumstances
in which this power may be used, and how these provisions are
considered to be compatible with the Article 2 requirement of
independence.

2.16 Issues as to independence are also raised by
the ministerial power to issue a "restriction notice"
(clause 17(2)) at any time during the course of the inquiry.[122]
Restriction notices may limit attendance at the inquiry or the
disclosure of publication of evidence or documents provided to
the inquiry (clause 17(1)). They may be made only where they are
either required by any legislation or rule of law (clause 17(3)(a))
or are "conducive to the inquiry fulfilling its terms of
reference" or are "necessary in the public interest"
(clause 17(3)(b)). In assessing the public interest, a Minister
must have regard to a number of criteria including

 the
extent to which making a restriction order could "inhibit
the allaying of public concern" (clause 17(4)(a));

 the extent to which making the restriction
order could avoid "any risk of harm or damage" (clause
17(4)(b));

 confidentiality of the information or
documents concerned (clause 17(4)(c));

 the extent to which not making a restriction
order could cause delay, impair efficiency or effectiveness, or
result in additional cost (clause 17(4)(d)).

2.17 "Harm or damage" includes death or
injury, damage to national security or international relations,
or to the economic interests of the UK or any part of it, and
damage caused by disclosure of commercially sensitive information
(clause 17(5)). These criteria are not defined on the face of
the Bill.

2.18 Under clause 18 (5) of the Bill, there is a
presumption that restriction notices on disclosure or publication
of evidence or documents continue in force indefinitely, unless
the restriction notice specifies that they expire at a particular
time, or the notice is varied or revoked. Restrictions in relation
to inquiry records apply for a maximum of 30 years. (clause 18(6))

2.19 We are concerned that a wide-ranging power
to issue restriction notices, remaining with the Minister once
the inquiry is in being, may compromise the independence of the
inquiry, contrary to Article 2 ECHR. We have written to the Lord
Chancellor to seek clarification as to why it is necessary for
the Minister, as well as the Chairman, to retain such powers,
and how they can be justified in light of the need for independence
in inquiries which engage Article 2 ECHR.

2.20 Under clause 23 of the Bill, it is the default
position that the Minister is responsible for the publication
of the inquiry's report. The Chairman may become responsible for
publication by arrangement with the Minister either before or
during the inquiry (clause 23(2)). Under clause 23(4) the Minister,
if he or she retains the duty of publication, may withhold material
from publication, where this is required by law, or where it is
considered to be necessary in the public interest. In determining
the public interest, regard is to be had to the extent to which
non-publication would inhibit the allaying of public concern;
confidentiality; and any risk of harm or damage that could be
avoided or reduced by withholding publication. "Harm or damage"
is again widely drawn, and includes death or injury, damage to
national security or international relations, damage to the economic
interests of the UK or to any part of it, and damage caused by
disclosure of commercially sensitive information. We are concerned
that this degree of ministerial discretion as to publication of
the conclusions of an inquiry puts at risk both the independence
and the appearance of independence of the inquiry, and may fall
short of compliance with Article 2 rights in inquiries where those
rights are engaged. We have written to the Lord Chancellor asking
why this degree of discretion is considered to be compatible with
Article 2 ECHR. We have sought reassurances from the Lord Chancellor
that the responsibility for publication would be allocated to
the Chairman at the outset of any inquiry which engaged Article
2, and that consideration will be given to making provision to
this effect on the face of the Bill.

2.21 Under clause 36, the Minister may withdraw funding
from an inquiry where he or she believes that the inquiry is operating
outside its terms of reference, or is likely to do so. The Minister
must provide a notice to the Chairman of the inquiry, specifying
this belief and the reasons for it. The Explanatory Notes observe
that: "the withdrawal of funding may be temporary and the
Minister will resume funding if he is satisfied the inquiry is
working back within the terms of reference".[123]
Whilst the terms of reference of an independent inquiry may be
open to differing interpretations, their interpretation and application
should be a matter for the Chairman of the inquiry, if independence
is to be maintained. We are concerned that this provision undermines
the role of the Chairman of an inquiry in interpreting and applying
his or her terms of reference, and leaves open the possibility
of undue ministerial influence on an inquiry. We have written
to the Lord Chancellor expressing this concern, and asking why
clause 36 is considered to be compatible with Article 2 ECHR.

2.22 We welcome the fact that the Bill, in clause
8(1), makes impartiality a requirement of appointment to an inquiry
panel. Appointees to the panel must not have a direct interest
in the matters under consideration, or a close association with
any interested party (clause 8(1)). However, these requirements
are subject to an exception where "in the Ministers' opinion
the person's interest or association would be unlikely to influence
his decisions as a member of the panel." We are concerned
that this provision may fail to ensure the practical impartiality
required of Article 2 investigations. We have drawn this concern
to the attention of the Lord Chancellor.

2.24 Provision for Ministerial control, through the
issue of restriction notices and the conclusion of an inquiry
before the issue of a report, may raise issues of the inquiry's
effectiveness in accordance with Article 2. In particular, powers
to issue restriction notices which limit attendance of the inquiry,
or the disclosure of evidence or documents, in order to protect
widely drawn categories of general interests such as economic
welfare, national security or international relations, may impair
the effectiveness of an inquiry. The European Court of Human Rights
has found that a sufficient element of public scrutiny is an essential
element of an effective inquiry capable of securing accountability
in practice as well as in theory, although it accepts that the
degree of public scrutiny necessary may vary with the circumstances.[125]
We also note that the ECtHR has found that documents such as police
reports containing sensitive material which may prejudice private
individuals or other investigations are not automatically required
to be disclosed under Article 2.[126]

2.25 British Irish Rights Watch, in their submission
to us, raised concerns about the impact of ministerial controls
on the effectiveness of inquiries and considered that "in
particular, the powers of the Minister to issue notices restricting
access to an inquiry's proceedings, or to evidence given to an
inquiry, or documents produced by an inquiry, may inhibit public
scrutiny to such a degree that accountability is evaded".[127]

2.26 The European Court of Human Rights, in its application
of Article 2, has emphasised the importance of the next-of-kin
of the deceased being provided with information and involved in
the investigation procedure.[128]
The Court has found it to be a requirement of an effective investigation
that the next-of-kin have access to relevant documents and witness
statements.[129] There
is nothing in the Bill to prevent the issue of restriction notices
which limit access by the families of the deceased to the inquiry,
or to essential documents in the inquiry. We are concerned
that, without further safeguards on the face of the Bill, the
power to issue restriction notices may impair an inquiry's effectiveness,
potentially to an extent which would be in breach of Article 2
ECHR, by limiting public accountability and restricting the access
of next-of-kin to the inquiry proceedings.We have written to the Lord Chancellor
raising this concern, and asking whether further safeguards will
be introduced on the face of the Bill, or in guidelines, to address
this.

2.27 Under clause 23, as we have noted above, the
Minister is responsible for the publication of an inquiry's report,
in the absence of a specific allocation of such responsibility
to the Chairman of the inquiry. If the Minister retains control
of publication, he or she may withhold material from publication
where this is required by law or is considered to be necessary
in the public interest. The extent of ministerial control over
whether the conclusions of an inquiry, or the evidence which led
to those conclusions, will be made public has the potential to
frustrate compliance with the Article 2 requirements that the
inquiry be open to a sufficient degree of public scrutiny to ensure
accountability, and that it provide the next-of-kin of the deceased
with an explanation of the circumstances of the death. We have
already raised concerns and referred to our questions to the Lord
Chancellor regarding this aspect of the Bill above at paragraph
2.20.

2.28 Under clause 37 of the Bill, there is provision
for the Chairman to make an award of expenses, including the costs
of legal representation, to any witness to the inquiry or to any
person whom the chairman considers to have a particular interest
in the proceedings or in the outcome of the inquiry such as to
justify payment. Such awards are made at the discretion of the
Chairman. Furthermore, clause 37(4) provides that the Chairman
enjoys the discretionary power to make awards only where such
a power is authorised by the Minister, and that the power may
be subject to conditions or qualifications imposed by the Minister.
Article 2 requires that an inquiry should facilitate the full
participation of family members. For this right to be effective,
funding for legal representation will be required for family members
of the deceased in cases where Article 2 is engaged. We have
therefore written to the Lord Chancellor asking for a reassurance
that legal aid would be provided to family members in all such
cases.

2.34 In order for the use of clause 19 powers to
comply with Article 8, the inquiry concerned would need to serve
one of the legitimate aims specified in Article 8.2, including
for example, public safety, the prevention of disorder or crime,
or the protection of the rights and freedoms of others Furthermore,
clause 19 powers would need to be exercised in a manner proportionate
to that aim. Under section 6 of the Human Rights Act 1998, the
Chairman of an inquiry, as a public authority under the Act, would
be required to exercise these powers in accordance with Convention
rights. In our view the powers under clause 19 are capable
of being exercised in accordance with rights under Article 8 ECHR.